The key issue in this trial was whether British football fixtures are protected by intellectual property rights. This issue has been the subject of judicial scrutiny before, both in the UK and the EU.

In 1959, the High Court held that literary copyright subsisted in the English football league’s fixtures (Football League Limited v Littlewoods Pools [1959] 1 Ch 637). The test for originality (which remains unchanged for most types of copyright work) was whether some labour, skill, or judgment had been exercised in creating the work (the traditional originality test).

In 1996, the Database Directive (96/9/EC) (the Directive) changed the landscape for works which fell into the definition of a database; that is, "a collection of independent works, data or other materials arranged in a systematic way and individually accessible by electronic or other means". For such works there would be two new rights:

The database right first came before the European Court of Justice (ECJ) in 2004 in four joined cases related to sport scheduling. One of these was the UK case of The British Horseracing Board and Others v William Hill, relating to lists of racehorses and riders (see feature article “Database right: a narrower scope of protection”). The other three cases were brought by a sub-licensee of the English football leagues at the time, Fixtures Marketing Limited (FML), which asserted database rights in football fixtures. All four cases related solely to the database right, and not to database copyright.

In all four cases, the ECJ decided that effort spent on creating materials to be contained in a database could not amount to obtaining, verification, or presentation of the contents of that database (the ECJ decisions). As a result, FML’s claims failed, because the effort expended on the English fixture lists was in creating the contents of the database (that is, the individual fixtures), rather than on obtaining, verifying or presenting those contents.

The claimants in the present case were the English and Scottish professional football leagues, and two of their licensees. They sued various entities, including Yahoo!, a bookmaker, and a football pools operator, all of whom had been publishing the claimants’ fixtures on their websites without a licence. The claim alleged infringement of: the database right; database copyright; and literary copyright.

The court held that the fixture lists were protected by database copyright, but not by the database right or by literary copyright.

It accepted that the fixture preparation process remained one which involved very significant skill and labour, and was not mere "sweat of the brow" work, in that the quality of the fixtures arrived at depended, in part, on the skill of those involved.

There was considerable argument about how the originality test for database copyright should be applied, as this was the first time it had been considered. The key issues were:

The court concluded that the claimants’ efforts in creating the fixtures amounted to work on selecting or arranging the contents of the database, and that there was sufficient judgment applied to that work for the fixtures to amount to the author’s own intellectual creation. The fixtures were therefore protected by database copyright.

This decision shows that database copyright will be available to database owners in some situations where database right does not apply, and provides useful guidance on how to assess whether there is database copyright (see box “The test for database copyright”).

It will therefore be welcomed by database owners, particularly those who are responsible for creating the underlying data (and so are less likely to benefit from database right). Database owners likely to benefit from this judgment will include other sporting bodies, although it should be noted that those who create their fixtures by mere drawing at random (as with most cup competitions and, it is understood, the Spanish football league) are unlikely to be able to demonstrate sufficient originality.

The decision is consistent with the aim (stated in various recitals) of the Directive of extending (rather than limiting) protection given to databases; if it had been held that football fixtures, which were subject to copyright in 1959, had ceased to be protected as a result of the Directive being introduced, that would have been a curious result.

Most of those who copy sport fixture lists tend to be either information-providers, such as Yahoo!, or involved in some form of sport betting. Such businesses will now have to take a licence, cease using a substantial part of the fixture lists, or see whether their use falls within one of the copyright defences, such as fair dealing for the purposes of reporting current events.